HKSAR v. Drammeh Mamudou also known as Mamudou Saiben
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DCCC 232/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 232 OF 2014 ----------------------
--------------------- Reasons for Verdict --------------------- 1.The defendant faces one charge of robbery committed in the early hours of the morning of 9 January 2014 in a rear lane by Chungking Mansions. 2.The prosecution case is that the victim was drunk and that the defendant seized a mobile phone from him whilst at the same time assaulting him. The defendant was shortly after, about one hour later, apprehended whilst in possession of the victim’s mobile phone in the vicinity of Chungking Mansions. 3.There also exists a CCTV recording of the rear lane of Chungking Mansions that recorded the whole incident. 4.The defendant says that he also was drunk and has no recollection of the incident, but believes he may have asked the victim for his phone and then obtained it by consent. 5.The evidence is as follows. 6.The prosecution case consisted of the evidence of the victim; also an employee of Chungking Mansions (PW2); and a police officer (PW3); also the admitted facts, which included the CCTV recording of the rear lane at Chungking Mansions; and a video interview recording made by the defendant. 7.PW1’s evidence, he being the victim, was that he had gone to Chungking Mansions the previous evening to drink with friends. He had become extremely intoxicated. He had decided to leave at about 4 am. He had no recollection of what happened. He was shown the CCTV recording of the rear lane. He identified himself as being the victim, the person assaulted. He said he did not know and had never seen his assailant before. He did not have any conversation with him. 8.Following the incident, an ambulance was called for the victim. The victim was treated by the ambulance man, but refused to go to hospital. Instead, he went to Tsim Sha Tsui Police Station. At the police station, his mobile phone was returned to him by the police; it had been seized from the defendant. 9.PW2 was involved in the property management of Chungking Mansions. He was able to identify the defendant from the CCTV recordings. He had seen him before around Chungking Mansions. That morning, he was able to see the defendant on another CCTV and at around 5.10 am he arranged for the police to be alerted and the defendant was subsequently arrested by PW3, PC8897. 10.In cross-examination, on viewing the CCTV, PW2 said that the defendant appeared drunk. That is, of course, opinion evidence by him and is not admissible to prove that fact. 11.PW3 located the defendant outside No. 32A Nathan Road. The defendant was waving his limbs, yelling and shouting. He identified the defendant’s clothing as being similar to that worn by the assailant on the CCTV. The defendant was searched and the victim’s mobile phone was recovered. It is a Samsung Galaxy Note 3. The witness took the defendant to Tsim Sha Tsui Police Station. 12.The witness in cross-examination said that he did not think that the defendant was drunk. He did not smell alcohol on him. 13.The CCTV recording of the rear lane was an exhibit and was played in court. It showed the defendant taking the victim’s mobile phone from the victim’s pocket and at the same time assaulting him by striking his neck. The defendant remains in the area for some time and some minutes later punches the victim over and further assaults him. The defendant then departs, having looked into the CCTV camera. 14.There is no dispute and there can be no dispute that the man shown in the CCTV taking the victim’s mobile phone and assaulting him was the defendant. 15.In his video interview record, which is admitted by agreement, the defendant attempted to provide an explanation for his actions. He admitted he took the victim’s mobile phone. He said he asked to take it so he could make a call. At one point, the defendant said the victim wanted something and he would make a call to find it. This can be gleaned from looking at the record. 16.Relevant extracts of the record are as follows:
17.He also said:
18.The defendant said, thereafter he kept the mobile phone in his pocket. For example, he said:
19.He was asked if the phone was a gift and he said, in response:
20.Thus the defendant appears to say that the victim gave him his phone so that he could make a call to get something and once the “something” was obtained the defendant would keep the phone. The defence case 21.The defendant gave evidence in his own defence. 22.In January 2014 he was living in Chungking Mansions. He had lived there for almost three years. 23.On the evening of 8 January 2014 he was drinking alcohol. He said this was whisky. He continued drinking until about 5 am. He drank three bottles of whisky, two large ones and one small one. He did not thereafter know what happened, because he was so drunk. He was going home and did not what happened. 24.He went outside. He did not know or recall if he met or spoke to anybody. At one point he said he did meet PW1 and asked him for a phone to make a call. He said he did not know how he replied and then went on to say he did not remember anything. He could remember he took the phone from PW1’s pocket. He was asked if PW1 consented. The defendant replied, “Maybe he’s consent, maybe not. I can’t remember.” He was asked if he beat PW1. He replied, “I can’t remember. Maybe.” He could not recall if they fought. 25.In cross-examination, he was asked: “What you told the police in the video recorded interview is not what happened.” He replied, “I can’t remember. I was drunk.” 26.The defence in submission said that the court could not be sure that there was any intent to steal. Neither PW1 nor the defendant could recall what, if anything, was said prior to the taking of the phone by the defendant. 27.Furthermore, there was evidence from PW2, it is said, that on his viewing of the CCTV the defendant appeared drunk. This, the defence said, supported the defence evidence, the defendant’s evidence, that he was drunk and could no longer recall what had happened. 28.As far as the legal considerations, they are as follows. 29.It is for the prosecution to prove the case against the defendant. The burden remains on them at all times. The charge must be proved beyond a reasonable doubt. 30.On the charge of robbery, which is the charge here:
31.The question of drunkenness is to be considered in relation to whether the defendant is proved to have formed the necessary intent - an intent to steal - accompanied by the use or threat of force. A drunken intent, nevertheless, is still an intent. 32.In this case, however, the defendant merely says he cannot remember what he did and why he did it. He is unable to say what the state of his mind was when he did the actions that can be seen in the CCTV. 33.Of course, what he intended to do can be deduced from all the surrounding evidence and any necessary inferences that can be drawn from that evidence, especially the CCTV recording, which clearly evidences the actual course of the offence. 34.There is also the evidence of PW3, who arrested the defendant within one hour of the incident and received the victim’s mobile phone from the defendant and was able to say the defendant did not appear drunk and did not smell of alcohol. 35.The finding of the facts in this case is straightforward. 36.The CCTV recording clearly shows a robbery in progress from inception to completion. There can be no dispute that it shows PW1 as victim and the defendant as an assailant. 37.At the time of the theft or taking of the phone, the defendant is seen to take PW1’s phone from his pocket and, at the same time, assault him, using force, by the application of force to PW1’s body. The act of robbery is plainly and clearly evidenced on that video recording. 38.The requisite intent would clearly accompany it and again is, in my view, the only and irresistible inference to be drawn from a perusal of that CCTV recording. 39.The defendant’s inability to recollect the offence does not in itself constitute a defence. 40.There is an issue as to the defendant’s state of drunkenness. I have his evidence. I also have the evidence of PW3, that the defendant was not drunk, although he behaved erratically. The evidence of PW3, which I accept, shows that the defendant was not incapacitated through drink and was clearly capable of forming the necessary intent. 41.The explanation given in the video recorded interview is not adopted by the defendant at trial. 42.Nevertheless, it is not what happened. PW1 and the defendant were not known to each other. There is no apparent discourse between them and, certainly, on appearance of the video, no agreement that the defendant should have the phone. The mobile phone is taken from the pocket of PW1. It is not given over by PW1 to the defendant. 43.I consider the video recorded interview contents are not reliable. They are a falsehood and an attempt at an explanation and I reject what is said in there. 44.I also note the defendant’s evidence at trial, where he said he was so drunk that he could not remember. 45.I do not find the defendant to be a reliable witness. I reject the evidence of the defendant given in its entirety. I find there was no consent given by PW1 to the seizing of the phone by the defendant. I find the defendant was not incapacitated or unable to form the requisite intent to steal through his consumption of alcohol. 46.That being the case, I find that the evidence of the prosecution is reliable and reliance can be placed upon it. I find that it proves the case against defendant beyond a reasonable doubt. It shows that the defendant did intend to steal PW1’s mobile phone and, at the time of doing so and in order to do so, he used force. Furthermore, that the only available inference from the facts proved is that the defendant intended to steal when he did so. 47.All the elements of the offence are proved against the defendant and I convict him accordingly.
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